Law

11:57 am

Tue June 25, 2013

Voting Rights Act: Supreme Court Says Times Have Changed

This is TELL ME MORE from NPR News. I'm Michel Martin. Later in the program, we will hear a perspective on the immigration bill, which is being debated in the Senate right now. You might not have heard this point of view. We'll hear from Senator Mazie Hirono from Hawaii. She tells us why she thinks the bill in its current form disadvantages women. And she'll tell us what she proposes to do about that. That's coming up later in the program.

But first, we turn once again to the Supreme Court. The justices today, in a 5-4 ruling, struck down a key piece of the landmark Voting Rights Act of 1965. The case was Shelby County v. Holder. It concerns the portion of the Voting Rights Act that requires a number of places around the country with a history of discrimination to get approval from the Department of Justice or a federal court before changing their voting laws. That's called getting preclearance. Shelby County, Alabama challenged that part of the act, saying that the formula the government uses to determine which areas require preclearance is outdated.

The court agreed. With us to talk about this once again, are John Malcolm, he's a senior legal fellow at The Heritage Foundation. That's a conservative research organization here in Washington D.C., a so-called think tank. Also with us, Spencer Overton. He is a professor of law at George Washington University here in Washington, D.C. He previously served in the Obama administration and the Justice Department, and was a member of a bipartisan high-level commission on election reform. He was actually in the court when this issue was argued a few months ago. Welcome back to you both. Thank you both so much for joining us.

SPENCER OVERTON: Thank you, Michel.

JOHN MALCOLM: Thanks for having me on.

MARTIN: John Malcolm, I'm going to start you because I understand that you're quite pleased with this decision.

MALCOLM: Well, yes. I believe that this was an important victory for state sovereignty and also for, you know, trying to address problems based on current data, current needs, and not based on data, that in this case, was over 40 years old. You know, the Supreme Court struck down a provision that applied to - that treated nine states and parts of six other states differently based on voter registration and voter turnout data that was stuck in time based on elections in 1964, 1968, 1972.

And the court said that if you're going to have such an unprecedented intrusion into state sovereignty, basically requiring states to say, mother may I, before they can enact and implement any changes to their voting laws, that has to be based on current data and a recognition that the Deep South is no longer engaged in pervasive racism as it was back then.

MARTIN: Professor Overton, you obviously have a very different point of view. You've actually already blogged about this and you say that today's Supreme Court decision is a setback for democracy. Why do you feel that way?

OVERTON: Michel, it's because overwhelming evidence shows that too many politicians continue to win elections by unfairly manipulating election rules. The court's decision only makes this problem worse. The biggest problem will be all the under the radar manipulation, especially for local offices that won't get national attention. Now this local manipulation is a real problem.

Over 85 percent of changes that were rejected as unfair by Section 5 were at the local level. So, for example, in Nueces County, Texas the rapidly growing Latino community surpassed 56 percent of the county's population, and in response, county officials gerrymandered local election districts to weaken votes by Latinos.

Now without Section 5 protections to block this type of racial manipulation, Americans in areas like Nueces County won't have the thousands, and sometimes millions of dollars, needed to bring a lawsuit to stop these unfair changes. Congress must update the Voting Rights Act to address the new holds in the law. One good thing about this opinion is that the court said that Congress can update the coverage formula.

MARTIN: Can I just get you both going forward to be clear about what Section 4 and Section 5 are, remembering that everybody listening to our conversation is not an attorney and is certainly not a Constitutional law expert. So Professor Overton though, is your view that the current formula is really fair to the country or that it really needs to cover more people, more jurisdictions, that every jurisdiction should be subjected to the same rules. Or is it your view that these areas that were covered by these rules particularly need to be singled out in this way?

OVERTON: Right, my take is that we need to look forward. Certainly, Congress had hearings on this matter. The vote was 98-0 in the Senate. That this coverage formula was fine but we need to look forward and we need for Republicans and Democrats to work together moving forward to develop a new coverage formula.

Specifically, I think we need to update preclearance. We need to expedite litigation, update litigation, so it's more effective. And we should also require disclosures so that areas with significant minority populations disclose their election changes. That kind of transparency will ensure that, you know, sunlight is the best disinfectant and it'll deter a lot of bad activity.

MARTIN: We're talking about the Supreme Court's decision in a major voting rights case. The court struck down one provision of the Voting Rights Act of 1965 but upheld another. My guests are Spencer Overton of the George Washington University School of Law, and John Malcolm of The Heritage Foundation.

John Malcolm, do you think that - just from your point of view, that the country needs another formula? The court said that the Congress is free to draft one. Do you think we need one?

MALCOLM: Well, let's be clear what the opinion did not do today. The Voting Rights Act is still on the books. Section 2, which was always envisioned to be a permanent section of the Voting Rights Act still remains. That section bans any standard, practice, or procedure that results in the denial or abridgment of the right of any citizen to vote on account of race or color. So people can still challenge laws implemented by states and counties, wherever they may be, if they believe that they are discriminatory.

If the old coverage formula were applied to the states today, the only state that would require preclearance is Hawaii. It is now the case, according to Pew research, that for the first time in the last election, African-Americans, on a percentage basis, voted in higher percentages than whites. And in fact, that was the case in virtually all of the states that are covered, or that were covered, by Section 5 preclearance under the Voting Rights Act. This is a sign of tremendous racial progress.

And, you know, Congress, if it decides to look into this, needs to take account of that and go into this with at best, a scalpel and not a hatchet, as it did based on conditions that existed back in 1972, that fortunately no longer exist today.

MARTIN: John Malcolm, let me ask you about something that Spencer Overton raised, and then Spencer Overton, I want to raise something that John Malcolm raised with you. So John Malcolm first, Spencer Overton raises two points.

One, he argues that population changes in some of these jurisdictions that require preclearance are being - or that manipulative tactics, let's say, are being directed at other minority groups, namely Latinos. He also makes the point that requiring citizens to go and affirmatively challenge their government is a very expensive and difficult process that they shouldn't have the burden of that. What do you say to that?

MALCOLM: Well, what I say is, is that the alternative is unacceptable, which is states, which are indeed separate sovereigns and entitled to respect as separate sovereigns. And not only all states, just particular states had this extraordinary intrusion whenever they want to enact any change to their voting rights or voting laws, and that they have to get the Department of Justice to clear it.

That is an extraordinary intrusion by the federal government on the prerogatives of the states, and it should not be permitted lightly. And the court said today, quite clearly, if you're going to do something this unprecedented, it better be based on current data, which it clearly wasn't here. You know, look, if citizens have to challenge discriminatory practices, they do that in all manner of other kinds of cases, and they can do so here using Section 2.

MARTIN: Spencer Overton, what about John Malcolm's point that the data, their recent data on voter turnout, for example, showed that African-Americans have indeed achieved parity with White-Americans, and in a lot of places, have surpassed them in their willingness and opportunity to vote. So this demonstrates, just on its face, that this isn't necessary anymore.

OVERTON: Well, that's not just the only problem. That was certainly a problem back in the 1960s. But in Nueces County, the Latino population was 56 percent of the county, and that's when the Anglo incumbents manipulated the voting rules to ensure that Latinos would not control the majority of the seats on the County commission. So it's not necessarily just what turnout is, it's about politicians manipulating rules to diminish the voting strength of many Americans and to maintain their own power.

I think that's one big point. I think another point is, certainly, places with recent and new voting rights violations should be required to pre-clear their changes. I mean, we have, for example, you know, if you're on probation and you violate the law, you know, you have to check in here. You've got to check in with your probation officer. Places that today, or have recently, violated the Voting Rights Act should be subject to preclearance. That's not unreasonable.

MARTIN: What do you think should happen next? And we have about two minutes left, and I'd like to share that between the two of you. So Spencer Overton, what do you think should happen next?

OVERTON: Well, as I've just said, we need to update preclearance. That's number one. The second piece is, we've got to update litigation. So lawsuits are more efficient and effective in stopping unfair election rules before they're used in elections and harm voters.

One of the problems now is that the election rules that are discriminatory go on the books and they harm voters. So we've got to stop those before they even go on the books. And there's some other litigation changes we need to make. The third point that Congress needs to take up is disclosure. We have disclosure in securities, campaign finance, antitrust, environmental impact statements, a variety of other places.

Transparency deters bad activity. And the big plus of Section 5 was that these local officials knew that their actions would be reviewed and, as a result, there was deterrence of a lot of bad activity, and disclosure can help with some of that deterrence.

MARTIN: John Malcolm, what do you think should happen next? And you're going to have the final word here.

MALCOLM: Sure. Well, I think that, ironically, some of the racial gerrymandering that Spencer is talking about was caused by the Voting Rights Act sections that were struck down today. I think that, really, the American people should view this as a victory in terms of - at least in terms of voting. African-Americans, other minorities achieving racial parity, and I think that, you know, Congress should step back and see how voting takes place in different - in different jurisdictions, and overtime if necessary, and only if necessary, apply a scalpel to that and not a hatchet.

MARTIN: John Malcolm is a senior legal fellow at The Heritage Foundation. That's a conservative research and policy group, a think tank in Washington, D.C. He was with us from their studios there. Spencer Overton is a professor of law at George Washington University, also in Washington, D.C. He joined us by phone from his office. Thank you both so much for speaking with us today.